p. 426come down into the pan ; ■ that unless there is an accident, ■or something occurs to parts of the engine there is no place where fire can well escape ; and that assuming the engine to be in a perfect condition, there is no place from which fire can escape. No evidence to explain the cause of the falling of the cinders from their locomotive was offered on the part of the defendants. Plaintiff was allowed to testify that since the occurrence, by which he was injured sparks had not fallen from the engines of defendants to the same extent as formerly, the trial judge holding that while it was not conclusive on the question of defendant’s negligence, it might be some evidence to show that some contrivance could have been adopted at or before that time, which would have prevented the falling of cinders.
A motion was made, by counsel for the defendants, for ■dismissal of the complaint on the grounds that plaintiff was guilty of contributory negligence, and that no negligence on the part of the defendant had been proved. The motion was denied and the jury, after charge by the trial judge, - rendered a verdict for the plaintiff of $600. Exceptions were taken by counsel for the defendants to various rulings of the learned trial judge as to admission and rejection of evidence, and to his charge to the jury; and a motion was made for a new trial on the judge’s minutes, on the ground that the verdict was against the weight of evidence, and contrary to the evidence. This motion was denied.
Deyo, Duer & Baue rdorf, for appellant.
—It was error to permit the plaintiff to testify that since the accident, cinders, etc., had not fallen so much as before that time (Dale v. Delaware, etc. Co., 73 N. Y. 468 ; Baird v. Daly, 68 ld. 547; Salters v. Delaware, etc. Co., 3 Hun, 339 ; Payne v. Troy, etc., Co., 9 Id. 526; Dougan v. Champlain, etc. Co. 56 N. Y. 1 ; Sewell v. Cohoes, 11 Hun, 626 ).It was error to exclude the question whether the devices to avoid throwing sparks, ashes or cinders which were in use upon the locomotives of the company at the time of
p. 427the accident, were the best that were known (Steinweg v. Erie Co., 43 N. Y. 123 ).The court also erred in refusing to dismiss the complaint on the ground that the plaintiff was guilty of contributory negligence. His work took him every day where the danger was. He was aware of it to such an extent that he had used a shade to protect his eyes, and this device was adopted to his knowledge by other men similarly situated. It was net an irksome of' unreasonable thing for him to do, and had he done it, probably would not have been hurt. It was conceded by the court that the plaintiff would be blamable in this respect “if the escape of cinders and sparks were a necessary incident to a careful operation of the elevated road, and had to be guarded against.” It is respectfully submitted that this necessity clearly appears from the evidence, and commends itself to the experience of all, as inseparable from the operation of a railroad by the use of steam (Field v. N. Y. Cent. Co., 32 N. Y. 339 , p. 350; McCaig v. Erie Co., 3 Hun, 599 ; Collins v. N. Y. Cent. Co., 5 ld. 503).Lewis J. Morrison, for respondent.
—No error appears to have occurred in the trial of this action.
Construing the evidence in the light most favorable to the plaintiff, as the jury had a right to do, there was enough to sustain the infefence that the accident occurred without negligence of the plaintiff, and by reason of negligence on the part of the defendants, in allowing some part of the machinery of their locomotive to be defective, thereby causing the injury to the plaintiff, and in the absence of any contradiction or explanation on the subject, on the part of the defendant, there was enough to warrant a verdict in favor of the plaintiff.
The learned trial judge correctly stated to the jury, the principles of law by which they should be governed, and left fairly to them for their consideration the questions of fact.
p. 428The admission of evidence to the effect that cinders had been seen falling from defendant’s locomotives since the accident, but not so much lately, under the careful qualification of the trial judge, was not error (Dale
v. Del. Lack.
& W. R. R., 73 N.
Y. 468 ). It was not followed up by any other testimony tending . to -give it weight and direction, and its effect, if any, must have been too slight to produce any influence on the jury.
The question put by defendant’s counsel to the master mechanic of the defendants on cross-examination: “In your opinion, were the devices used upon your locomotives ” (to avoid throwing sparks, ashes, or cinders from them), “ in January, 1880, the best that were known” % was rightly excluded, as then put. The question was not sufficiently specific, and the jury should have been informed as to what devices were actually used by the defendant on its locomotives at the time of. the accident, and thus enabled to judge for themselves as to the nature and efficacy of such devices, rather than depend on the general opinion of the witness.
‘ Indeed, immediately after the question was excluded, the counsel for the defendant did in the regular way and without objection, make inquiry of the witness as to the kind and nature of the devises in use by the defendant, and did elicit the opinion of the witness thereon, so that no detriment could have occurred to the defendant by such exclusion.
The judgment of the court below should be affirmed with costs.
Sedgwick, Ch, J., concurred.